The Court of Appeal in Accra has set aside a 2022 judgment of the High Court, Lands Division, after finding that the trial judge’s previous professional involvement in the land transaction at the centre of the dispute created a conflict of interest and a real likelihood of bias.
In Unique Furnishing Limited v. Holman Brothers Limited [TLP-CA-2026-43], the three-member panel presided over by Justice Angelina Mensah-Homiah, JA, with Justice Jennifer Myers Ahmed, JA, and Justice Dr. Richmond Osei-Hwere, JA, held that the trial judge ought to have recused herself from the proceedings because she had personally participated in a significant aspect of the transaction before assuming judicial office.
The Court consequently set aside the High Court’s judgment dated 29 July 2022 and ordered that the case be retried before a differently constituted High Court.
Background to the dispute
The dispute arose from an action commenced by Unique Furnishing Limited at the High Court in 2006 against Holman Brothers Limited concerning approximately 2.68 acres of land at Alajo, Accra.
Unique Furnishing claimed, among other reliefs, a declaration that Holman Brothers had no right to enter or remain on the land, an order for ejectment, damages for trespass and a perpetual injunction restraining the defendant from entering or occupying the property. The claim was founded substantially on a lease granted by the Lands Commission to Unique Furnishing.
Following a full trial, however, the High Court dismissed Unique Furnishing’s claims and entered judgment in favour of Holman Brothers.
Unique Furnishing subsequently appealed to the Court of Appeal on the principal ground that the judgment was against the weight of the evidence.
Appeal takes a different turn
Although the appeal was principally framed around the weight of the evidence, the Court of Appeal identified a more fundamental issue from its examination of the record on whether the trial judge’s participation in the case was compatible with the constitutional and common-law requirements of judicial impartiality.
The Court emphasised that an appeal against the weight of evidence is ordinarily by way of rehearing, requiring the appellate court to examine the record, including the testimony and documentary evidence, to determine whether the trial judge’s conclusions were reasonably supported by the evidence.
The Court also considered whether legal questions could properly arise under an omnibus ground of appeal. Relying on authorities including Owusu-Domena v. Amoah and Atuguba & Associates v. Scipion Capital (UK) Ltd, the Court concluded that points of law may be considered where the assessment of the weight of the evidence is substantially influenced by legal issues, including the rules of evidence and practice or the burden of persuasion and production of evidence.
The Court therefore held that the conflict-of-interest issue, although involving both law and fact, could properly be considered under the omnibus ground because it arose from the evaluation of the evidence on the record.
The constitutional importance of an impartial judge
The Court placed the principle of judicial impartiality at the centre of its decision.
It explained that the common-law principles of audi alteram partem ( the right to be heard) and nemo judex in causa sua (the rule that no person should be a judge in his or her own cause) underpin the right to a fair hearing.
The Court noted that these principles have been elevated into fundamental constitutional rights in Ghana. It relied on the Supreme Court’s decision in Re Effiduase Stool Affairs (No. 2), Republic v. Oduro Nimapau, President of the National House of Chiefs; Ex parte Ameyaw II (No. 2), where the Supreme Court described a fair trial free from prejudice as a basic principle of a civilised system of justice.
The Court further referred to Article 19(13) of the 1992 Constitution, which guarantees judicial independence and impartiality, and stressed the well-established principle that justice must not only be done but must also be seen to be done.
When does a judge have to recuse?
The Court made clear that not every allegation or suspicion of bias requires recusal. The suspicion must be reasonable, and the doctrine cannot be used by litigants as a mechanism for forum shopping.
However, where circumstances disclose a real likelihood or reasonable possibility of bias, a judge must step aside.
The Court relied on Republic v. High Court, Kumasi; Ex parte Mobil Oil (Ghana) Ltd; Hagan (Interested Party), where the Supreme Court recognised that a judge may be disqualified where the circumstances point to a real likelihood of bias, including where a decision may be affected by preconceived views.
The Court also adopted the objective approach to determining apparent bias. The question is not simply whether the judge personally believes that he or she is impartial. Rather, the circumstances must be assessed objectively to determine whether a fair-minded and informed observer would conclude that there was a real possibility or real danger of bias.
The conflict in Unique Furnishing
The decisive issue arose from the trial judge’s previous professional capacity.
Unique Furnishing’s case depended heavily on its leasehold interest in the disputed property. During the trial, the judge referred to the lease and the relevant Land Title Certificate and concluded that the documents had been procured by fraud.
The judge consequently ordered, among other things, that the lease be declared invalid and cancelled and that the Lands Commission amend its records in relation to the disputed property.
But the Court of Appeal noted a crucial fact that the Land Certificate had been signed by the trial judge in her previous professional capacity as Chief Registrar of Lands.
According to the Court, this was the source of the conflict-of-interest problem. The judge was not merely dealing with a document in which she had no prior involvement; she had personally participated in the process by which the certificate was issued.
The Court held that the judge’s previous involvement in conferring title on the appellant created a real likelihood of bias and undermined the appearance of neutrality required of a judicial officer.
Personal knowledge of a case can require recusal
The Court further observed that recusal is not confined to situations where a judge has a financial interest or personal relationship with one of the parties.
In the present case, the Court acknowledged that there was no evidence of a personal connection between the judge and either party and no financial interest on the part of the judge in the outcome.
Nevertheless, the Court found that the judge possessed personal knowledge of the facts arising from her previous professional role. That prior knowledge, in the circumstances of the case, was sufficient to raise a serious question concerning her ability to act as a neutral arbiter.
The Court of Appeal also drew support from a recent decision of the Supreme Court in Republic v. Court of Appeal (Civil Division), Accra; Ex parte Klenam Construction Limited (Falcon Crest Investment Limited and 2 Others, Interested Parties).
In that case, the Supreme Court quashed a Court of Appeal decision after finding that one of the panel members had previously adjudicated an aspect of the dispute as a High Court judge.
The Supreme Court held that the judge’s earlier decision in favour of the interested parties created a reasonable apprehension that his mind had already been made up on the ownership of the disputed land, resulting in a real likelihood of bias, or at the very least, the appearance of bias.
Judgment set aside and retrial ordered
Having found that the trial judge ought to have recused herself, the Court of Appeal declined to determine the appeal purely on the merits of the underlying land dispute.
Instead, it set aside the High Court judgment of 29 July 2022 and ordered that the case be retried before a differently constituted High Court.
The decision in Unique Furnishing Limited v. Holman Brothers Limited reinforces a proposition of judicial administration that a judge must not sit in circumstances where his or her previous professional involvement in the subject matter of the dispute creates a real likelihood or reasonable appearance of bias.
For litigants, the case demonstrates that the right to a fair hearing extends beyond the opportunity to present evidence and arguments. It includes the right to have those matters determined by a tribunal that is, and is reasonably perceived to be, independent and impartial.
For the judiciary, the decision highlights the importance of proactive recusal where a judicial officer’s prior involvement in a matter may reasonably call his or her neutrality into question.
